OSHA’s ‘Model Workplaces’ to Face Greater Scrutiny

By Roy Maurer
9/18/2012

Permissions

Workplaces that won exemptions from federal safety inspections will now face greater scrutiny, amid concern over worker deaths and allegedly overlooked safety and health violations, according to an internal Occupational Safety and Health Administration (OSHA) report.

OSHA made public a report on the agency’s Voluntary Protection Program (VPP)—the “model workplace” program made up of employers that have injury and illness rates below national averages for their respective industries—making 34 recommendations for changes and improvement, and concluding that the agency should streamline its oversight of employers participating in the program. The report recommended OSHA update the VPP manual for consistency in the administration of the program. It also proposed changes to the way OSHA responds to serious accidents and how it removes worksites from the VPP, among other suggestions.

The report was issued by a VPP Review Team, which was comprised of OSHA regional and national office members. This team was created in April 2011, and tasked with conducting a review of the VPP and issuing recommendations in response to a critical 2009 Government Accountability Office (GAO) report that called for improved VPP oversight and controls. News outlets also have reported that, since 2000, at least 80 workers have died at sites the agency considered “model” and exempted from programmatic inspections.

“This report will serve as a valuable road map for the agency as we continue to address issues present in VPP,” Jordan Barab, deputy assistant secretary for OSHA, said in a statement. “In general, we agree with most of the findings of the report, and have already or will be implementing a number of substantive changes to the program based on the recommendations included.”

Enhancing the Administration of the VPP

The review team found that there are several actions OSHA can take to enhance the administration of the VPP, including ensuring the VPP Automated Data System (VADS) is up-to-date, exploring the idea of graduating VPP participants from the program, revising and improving the on-site evaluation report worksheet, requiring sites to report and explain significant changes in data, and possibly discontinuing the Corporate Program and the Merit designation.

“Overall, the report is useful, because it identifies that there are some things in the VPP program, such as standardization between regions, that should be addressed,” said Brad Hammock, head of the Workplace Safety Compliance Practice Group at Jackson Lewis, in an interview with SHRM Online.

“I don’t think this report will bring about a sea change in the program, but I’d look for the lesser recommendations to be implemented,” Hammock added.

Employers thinking of pursuing VPP are not going to base that decision on what is in this report, with the possible exception of the recommendations to discontinue certain categories like the Corporate Program and the Merit designation, Hammock said.

The VPP Corporate Program was designed for large corporations and federal agencies that were able to bring multiple facilities into the VPP. To participate, employers “must have established, standardized corporate-level safety and health management systems, effectively implemented organization-wide as well as internal audit/screening processes that evaluate their facilities for safety and health performance.” According to the report, one OSHA regional administrator claimed that this program “is not an accurate way to determine the effectiveness of each site’s safety and health management systems.” The review team also found that corporations failed to bring in the required number of sites within the designated time frame.

The review team endorsed discontinuing the Merit designation because of workload constraints. The Merit designation is recognition for employers who have implemented good safety and health management systems that need additional improvement. The OSHA regions said the program required a lot of maintenance and multiple onsite evaluations. “Those regions with large numbers of VPP sites and re-approvals are often unable to process applications from those companies they believe can only achieve Merit status. This practice can lead to applicants being treated differently from region to region,” according to the report.

The discontinuation of the Merit designation is the most bothersome recommendation in the report, noted Hammock, who feels that OSHA should strive to go in the other direction and expand the program to include more categories, enabling more employers a chance to enter the program.

“I don’t think that OSHA should discount employers’ willingness to try to get recognition for their safety and health program that isn’t tied to an inspection incentive or enforcement break. The more you broaden the program in order to make it more acceptable to more companies, the better off safety and health is,” he said.

Changes to VPP Enforcement

The team recommended enforcement actions OSHA could take, including:

*Allowing an OSHA regional administrator to propose termination for a VPP participant in cases where the administrator believes employees’ safety and health are seriously endangered or that a lack of trust has occurred between VPP management and OSHA. The report found that the VPP manual’s policy on withdrawal and termination from the program is confusing and results in inconsistency among the regions. According to the report, there is limited guidance as to when an OSHA administrator has the authority to terminate an employer’s VPP participation.

*Developing a process after a work-related fatality or significant enforcement activity whereby a site is placed in an “Inactive” status pending completion of an investigation. The report claimed that several stakeholders suggested that willful violations and/or work-related fatalities were indicative of a deficient safety and health management system.

*Removing employers immediately who violate whistle-blower statutes. The report explained that the current VPP manual does not address what happens if a program participant is found by the agency to have violated anti-retaliation or whistle-blower statutes of the Occupational Safety and Health Act.

Programmed Inspections and National Emphasis Programs

Among the report’s 34 recommendations, one of the most significant was not to change the exemption from OSHA programmed inspections, checks often resulting from when an employer is in an industry targeted by an OSHA national emphasis program. Stakeholders from VPP companies all wanted the exemption from programmatic inspection to remain, according to the report. They said this was often the “hook” to get management to put resources into the VPP. Several unions opposed the exemption, the review team found. The OSHA review team concluded that the agency could best use its limited resources by inspecting workplaces “that have a higher chance of noncompliance rather than sites OSHA has been to in the last three to five years.”

In a separate OSHA statement accompanying the report, the agency said many of the recommendations can be implemented by March 31, 2013, and that a “few will take more time to implement appropriately.”

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